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Blog: Why was the state kept in the dark while making such a major change?

Blog: Why was the state kept in the dark while making such a major change?

TNN | Updated: Aug 6, 2019, 7:48 IST

By invitation Right or wrong, Monday’s move is one for the history books because of the manner in which the central government repealed Article 370 and bifurcated the state into the Union Territories of J&K and Ladakh. Naturally, it evoked huge uproar and outcry from the opposition. The procedure adopted by the central government is extremely curious and circumspect. Rumour mills were abuzz since deployment of heavy paramilitary forces across the state. On the intervening night of August 4-5, Section 144 CrPC was enforced across the state. All ex-CMs were placed under house arrest. Neither the Constitution (Application to Jammu and Kashmir) Order, 2019 nor the Reorganisation Bill figured on Monday’s list of business of Rajya Sabha. They were added only after the House was in session. What was the compelling reason for adopting such a clandestinely hurried approach? The wording of Article 370 (3) is important as it reads: “Notwithstanding anything in the foregoing provisions of this Article, the President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the state referred to in clause (2) shall be necessary before the President issues such a notification.” Let us analyse the facts. Governor’s rule in J&K was imposed initially on June 20, 2018. Section 92 of the Constitution of J&K does not permit its continuance beyond six months. Thus, President’s rule was imposed on December 20, 2018. It was extended for a period of six more months from July 3, 2019. With no elected government and the state governed by President’s rule, the natural question that arises is whether such a decision is the product of a democratic exercise? Monday’s events set a bad precedent, and herald a situation where President’s rule may be used to reorganise any state in future. In fact, the notification itself may be subjected to judicial scrutiny in view of J&K HC’s 2015 ruling which said: “It (Article 370) is beyond amendment, repeal or abrogation, in as much as the Constituent Assembly of the state before its dissolution did not recommend its amendment or repeal.” The wording of the presidential order makes the situation even more anomalous as it says: “In exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President, with the concurrence of the state government of J&K, is pleased to make the following order…” The presidential order supersedes the earlier order of 1954, and makes redundant Article 35A, which imposes restrictions on non-residents of the state. Can it be said that concurrence of the state government has been taken in the absence of an elected government and when President’s rule is in vogue? To my mind, the proviso to Article 370 was purposefully inserted keeping in mind India’s original commitment to the people of the Valley — we will give you a right to choose your own path and no unilateral decision would be taken. Speaking from my experience as a Kashmiri Pandit and as former advocate general of Madhya Pradesh, I can only say that by this move, we have missed out on the opportunity to initiate a landmark and historic consultative process. Over the last few days, ever since the troop movement started, we Pandits have had to endure sleepless nights. Even as advocate general of MP, when the state was being bifurcated into MP and Chhattisgarh, we were sensitive to the fact that such a reorganisation would have a far-reaching effect and could not have been effective without consultation with all stakeholders. In contrast, not a single stakeholder has been taken into confidence. Imposing repeal of Article 370 on the state when its people haven’t been heard and their leaders kept under house arrest is not a wise move and will invariably lead to conflict and strife, which the Valley can ill afford. As a Kashmiri Pandit, I am fearful as to whether we will be truly accepted if we decide to relocate back.

Only time will tell whether it sparks a conundrum or allows all communities, including Kashmiri Pandits, to live in harmony and peace. But the larger question remains unanswered — Why was this done behind the back of the people, and by not allowing them to have a say on their own future? Is this the new benchmark of democracy that we are shifting towards? If it is, then we are indeed headed for trouble. (Author: Vivek K Tankha is a senior advocate in the Supreme Court)